Mandatory Mediation: Opportunities & Drawbacks

In June last year, teaching trade unions and the UK government found themselves in deadlock regarding public sector benefits. Strikes and rallies hit the headlines, and it quickly became clear that the issue of pension entitlement and reform was a key area of interest for unions and the government alike. The Government claimed that reform was necessary in light of booming costs and increasing life expectancy, but teaching unions defended their anger and ensuing industrial action on the grounds that the secure future they had been promised was being threatened and withdrawn on an unfair whim.

This dispute is not one isolated in the UK. In the US, unions representing firefighters, teachers, police and local government workers took legal action against the State of Rhode Island in response to a new state law that shifted their pension plans to a defined contribution system from defined-benefit, while also raising the retirement age. A Rhode Island judge has referred the case to federal mediation.

This is the third high profile referral to the US Federal Mediation service (FMCS) in recent months, with the dispute between the National Hockey League and the NHL Players’ Association currently in mediation and the Los Angeles port strike also receiving referral to mediation at the beginning of December. But why does mediation seem to be much more prevalent in the U.S. in assisting in large-scale disputes than the U.K.?

Most obviously, making mediation mandatory addresses an issue of take-up: a variety of cases are referred to mandatory mediation before litigation in the US – and in Australia and New Zealand – because of a view that if mediation were voluntary, it wouldn’t get a look in. Essentially, mandatory mediation says that mediation is so beneficial a process, everyone should experience it. Having a Federal Service to facilitate collective mediations not only enhances the role of mediation but acts as a leader in developing the field of conflict resolution in terms of processes and standards.

In the UK, voluntary mediation is favoured – here, the voluntary and consensual nature of mediation is seen as the fundamental distinguishing feature between mediation and litigation. Participants enjoy a degree of control over proceedings that is simply not available in litigation, which draws heavily on timetables, procedures and agendas set by external third parties. Mediation is not compulsory, but judges are increasingly taking litigants’ willingness to participate in mediation into account when providing judgements or awarding costs.

Plenty of literature exists on the benefits and drawbacks of both systems, and one has to be mindful about how advanced mediation culture is within jurisdictions too and the affects by lawyers and plaintiffs.

In her well-researched and impressive book “Perceptions in Litigation and Mediation,” Tamara Relis examines mediation discourses and attitudes of parties and their lawyers, identifying perceptions of voluntary and mandatory mediation systems and evaluating the success of each. Intriguingly, lawyers spoke more favourably of voluntary mediation compared with the mandatory process, while plaintiffs see both systems as a stage in litigation. Although lawyers criticised mandatory mediation in terms of timing, parties tend to say that the earlier mediation the better. And although mediations are affected by the attitudes of lawyers, parties entered both voluntary and mandatory mediation with the same level of desire to settle the case.

These conclusions offer food for thought about why in some jurisdictions mediation is an essential part of any dispute (collective or personal), and why we must go beyond success statistics when evaluating either a voluntary or mandatory system. Mandatory or voluntary mediation systems aside, Roger Boudreau of the American Federation of Teachers’, stated “it’s at least an opportunity for both sides to explore things in real terms that didn’t occur but should have occurred previously.” Let’s hope it’s a success…

Andrew Fiddy is CEDR’s Programme Manager responsible for the management of international aid-funded dispute resolution and change projects. He has managed projects in the Middle East, North and East Africa, and Central and Eastern Europe for clients that include the International Finance Corporation, World Bank and the European Bank of Reconstruction and Development. He is a CEDR accredited mediator and is a conciliator with the Funeral Arbitration Service and the Renewable Energy Association.